QUALITATIVE DIFFERENCES ASSISTANCE ACQUISITION SUPPORT OR STIMULATION PURCHASE OR ACQUIRE GOODS OR SERVICES PUBLIC PURPOSE PURCHASE FOR THE AWARDING AGENCY LEVEL OF SUPPORT PRICE PARTNERSHIP BUYER/SELLER NO PROFIT OR FEE PROFIT ALLOWED UNILATERAL RIGHT TO UNILATERAL RIGHT TO TERMINATE TERMINATE BY THE RECIPIENT BY THE GOVERNMENT
PROCUREMENT CONTRACT (31 U.S.C. 6303, “USING PROCUREMENT CONTRACTS”) IF THE PRINCIPAL PURPOSE OF THE RELATIONSHIP IS THE DIRECT ACQUISITION OF PROPERTY OR SERVICES BY THE AGENCY FOR ITS DIRECT USE AND BENEFIT, USE OF A PROCUREMENT CONTRACT IS REQUIRED.
GRANT AGREEMENT (31 U.S.C. 6304, “USING GRANT AGREEMENTS”) A GRANT AGREEMENT SHALL BE USED IF THE PRINCIPAL PURPOSE OF THE RELATIONSHIP IS TO TRANSFER A THING OF VALUE TO CARRY OUT A PUBLIC PURPOSE OF SUPPORT AND SUBSTANTIAL INVOLVEMENT BETWEEN THE EXECUTIVE AGENCY AND THE RECIPIENT IS NOT EXPECTED IN CARRYING OUT THE ACTIVITY IN THE AGREEMENT.
COOPERATIVE AGREEMENT (31 U.S.C. 6305, “USING COOPERATIVE AGREEMENTS”) A COOPERATIVE AGREEMENT SHALL BE USED IF THE PRINCIPAL PURPOSE OF THE RELATIONSHIP IS TO TRANSFER A THING OF VALUE TO CARRY OUT A PUBLIC PURPOSE OF SUPPORT AND SUBSTANTIAL INVOLVEMENT BETWEEN THE EXECUTIVE AGENCY AND THE RECIPIENT IS EXPECTED IN CARRYING OUT THE ACTIVITY IN THE AGREEMENT.
GRANTS vs COOPERATIVE AGREEMENTS Substantially same document Terms/conditions/format are same Difference is amount of Substantial Involvement
HOW IS SUBSTANTIAL INVOLVEMENT MEASURED?
SUBSTANTIAL INVOLVEMENT Agency(NGB) has direct involvement in managing the effort Agency(NGB) reviews and approves before work can proceed Agency(NGB) has involvement in selecting personnel
STATE GUARD Title 32 United States Code (U.S.C.), National Guard, Chapter 1, Organization, defines the State, District of Columbia and Territorial Army and Air National Guard units as State Army and Air militias. And, unless activated to Federal active duty for a national emergency, these units are under the command and control of their State, Territory, or District of Columbia military department. Thus, Army and Air National Guard units, until activated to Federal active duty in event of a national emergency, are statutorily defined as State entities. Therefore, the State Military Department (SMD) in each State, Territory, or District of Columbia is a State entity.
The Department of Defense (NGB) has a vested interest in ensuring that the various States/Territories have combat ready units. DoD is willing to provide assistance to achieve this end. To look at how this is accomplished we need to look at the Federal Domestic Assistance provision.
FEDERAL DOMESTIC ASSISTANCE 31 U.S.C. CHAP 61 & 65 Whenever a Federal Government Entity Transfers Anything of Value To A Nonfederal Entity to Provide Assistance or Support For A Purpose That is Authorized by Federal Law.
FEDERAL DOMESTIC ASSISTANCE NATIONAL GUARD When a Federal Entity (NGB) Transfer Things of Value (Funds/In-Kind Assistance) To a Non-Federal Entity (State Military Department) To Assist or Support a Public Purpose (State Military Department Operations) That are Authorized by Federal Law (Statutory Authority)
QUESTION? What Instrument, Grant or Cooperative Agreement, Given The Amount of Substantial Involvement Required, is Best for NGB to Use to Provide Assistance?
QUESTION? Can a State or Territory develop and execute a Cooperative Agreement?
NO ! YOU MUST HAVE TWO ELEMENTS -
Specific(Positive)Statutory Authority Guard Mission Involvement THE TWO ELEMENTS ARE
Federal agencies must be authorized by statute to support or stimulate a public purpose FIRST REQUIRED ELEMENT ! (Specific Statutory Authority)
“SPECIFIC” STATUTORY AUTHORITY IS ACQUIRED FROM Specific Authority by Secretary of Defense Specific Authority by Services Secretary Specific Authorization or Program Legislation
BASIC STATUTES THAT PROVIDE ASSISTANCE AUTHORITY TO THE NATIONAL GUARD 32 U.S.C. 106, 107 (O&M) 32 U.S.C. 112 (COUNTERDRUG) 32 U.S.C. 113 (ARNG ADDITIONAL DUTIES) 10 U.S.C. CHAPTER 1803 (CONSTRUCTION) 32 U.S.C. 509 (CHALLENGE) 32 U.S.C. 501 (STARBASE) 10 U.S.C (ENVIRONMENTAL)
32 U.S.C. 106,107 (O&M) Establishes Master Cooperative Agreement Provides O&M support to State National Guards Basis for Specialized Agreements –Distance Learning
32 U.S.C. 112 (COUNTERDRUG) To provide assistance for State Counterdrug and Drug Interdiction Mostly done on Federal side
32 U.S.C. 113 (ARNG ADDITIONAL DUTIES) FY 98 DoD Authorization Act added 113 Congress recognized the valuable maintenance and assistance the Guard could provide the Active Army Provides for the Secretary of the Army to assign and fund missions to National Guard NGB initiated a broader proposal for both the ANG and ARNG to use CAs to do work for the Active Component OMB did not approve and it was not forwarded to Congress
CURRENT GUIDELINES Under 32 U.S.C 106, 107 the ARNG can only perform missions internal to the National Guard using a Cooperative Agreement. Missions performed for other services must be done with Federally reimbursed technicians.
10 U.S.C (MILITARY CONSTRUCTION) (APPLIES TO 2085 APPROPRIATION) Statute permits contributions to States for construction of Reserve Component facilities. A MCCA is required when a National Guard facility is to be constructed by the State.
32 U.S.C. 501 (YOUTH PROGRAMS) Starbase Requires NGB approval for Starbase Program
32 U.S.C. 509 (CHALLENGE) Requires NGB authority to initiate Challenge Program State share is set at 40%
32 U.S.C. 106, 107 (DISTANCE LEARNING) Requires Cooperative Agreement Potential for program income through shared usage
10 U.S.C (ENVIRONMENTAL) Environmental projects are generally funded through the Master Cooperative Agreement
CA MUST SUPPORT TRADITIONAL GUARD MISSION CA MAY ALSO SUPPORT NON-TRADITIONAL GUARD MISSIONS SECOND REQUIRED ELEMENT ! (Guard Mission Involvement)
COOPERATIVE AGREEMENT REPRESENTATION EXECUTIVE AGENCY (NATIONAL GUARD BUREAU): Representation for the Executive Agency rest with United States Property & Fiscal Officer serving as the Grants Officer. RECIPIENT: Representation for the recipient rest with the Adjutant General of each State and Territory.
QUESTION? ARE COOPERATIVE AGREEMENT CONSIDERED CONTRACTS?
ELEMENTS OF CONTRACT OFFER CONSIDERATION ACCEPTANCE CAPACITY OF PARTY LEGAL SUBJECT MATTER
ANSWER COOPERATIVE AGREEMENTS BY THEIR NATURE ARE COST REIMBURSEMENT NON-PROCUREMENT CONTRACTS.
Executive Agency (NGB/Grants Officer) is reimbursing the Federal Share of the costs incurred by the Recipient (TAG) within the scope of the agreement.
THE CONCEPT OF THE NATIONAL GUARD COOPERATIVE AGREEMENT PROGRAM “STATE PAYS” “FEDERAL REIMBURSES”
QUESTION? IF THE APPENDIX IS 100% FEDERALLY REIMBURSED – WHY DO WE NEED TO GO THROUGH THE STATE?
MY OPINION We may be confusing acquisition with assistance. We will underestimate the amount of assistance that is being provided. Assistance funds at the PBAC/FMB level may be subject for withdraw.
Executive Agency (Grants Officer) has no obligation to reimburse the Recipient (TAG) beyond the amount authorized in the agreement.
The Recipient (TAG) has no obligation to continue performance if the funding limitation has been reached.
MODULE TEACHING POINTS COOPERATIVE AGREEMENTS ARE THE INSTRUMENTS USED TO PROVIDE FEDERAL FUNDING TO THE STATE NATIONAL GUARD POSITIVE AUTHORITY REQUIRED SUBSTANTIAL INVOLVEMENT REQUIRED